Conformity in the courts

ByDIOctober 23, 1985

THERE is no rushing of justices to rally around a president's philosophical point of view. They take their time about it. They may resist a presidential appeal if the president is politically vulnerable, like Harry Truman in 1952 and Richard Nixon in 1974, or when a president seeks to usurp political authority, as Franklin Roosevelt did with his court-packing plan. But there is no mistaking the general drift of the court over time to support the expansion of presidential powers, especially in wartime or in the conduct of foreign policy, notes presidential historian Thomas Cronin. FDR eventually won court approval of his New Deal. Even Nixon, whose bid to sequester the Watergate tapes was turned down by the Supreme Court, won recognition of the principle of executive privilege.

This perspective -- that on balance presidents have been favored by court interpretations and have less reason to complain than they suggest -- gives the context for Mr. Reagan's latest words on court nominees.

Reagan wants an ``independent'' judiciary free of ``judicial activism.'' He says the Founding Fathers ``never intended that the courts preempt legislative prerogatives or become vehicles for political action or social experimentation, or for coercing the populace into adopting anyone's personal view of utopia.'' He adds: ``I want judges of the highest intellectual standing who harbor the deepest regard for the Constitution and its traditions -- one of which is judicial restraint.''

There can be no denying the tension among the branches of government over power. The current White House is itself not above claiming legislative authority, in seeking greater presidential sway with the line-item budget veto and the new budget-balancing bill. In such a world, is not the federal court nominee led, during screening interviews and confirmation hearings, to respond to the ideological and philosophical preferences of the administration that is nominating him? Behind such pronouncements is a n implied preference for judges who may agree with the administration's social-judicial outlook on individual rights, prayer in schools, criminal evidence, and so forth.

To call for judicial independence in a narrowly conservative context is to muddy the waters. Which does the administration rank first, competence and integrity, or judicial restraint? We are still not sure, even after the administration's explanations.

Jimmy Carter's appointees to the judiciary still outnumber Ronald Reagan's. And Mr. Reagan's sole Supreme Court choice, Sandra Day O'Connor, has shown an independent spirit on issues like the moment of silence in schools. Rather than attempt to influence the court through appeals to public opinion, Reagan may find greater comfort in the pattern of history, in which the courts confirm what appears to them just in the evolution of federal responsibility and powers.